by Marlies Spanjaard

Legal Analysis

Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes: The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems. Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices. Suspension or expulsion from school can play a major role in pushing students into this pipeline. Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country. Massachusetts is no exception. Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom. The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate. In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment. See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.

In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years. The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.

Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more. Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion. (Prior to the law, a non-special needs student excluded from school had no right to any educational services).

Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts. Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable. Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality. Massachusetts must do better, and this article suggests four ways that it can do so.

Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions

First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present. While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens. Often, a school official informs the student of his suspension while face-to-face, or by calling his parent. There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.

Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.” Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions. Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½. The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law. This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement. Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences. The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.

Limit The Authority Of Principals To Exclude Students For Out Of School Conduct

Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly. Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone. The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge. Principals are educators, not judges. They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information. In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.

Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges. Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty. Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies. One approach could be to align § 37H½ with the Youthful Offender Statute.

The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult. The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun. If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate. Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.

Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.

Finally, § 37H should more clearly define the terms “assault” and “weapon.” Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague. This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip. Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.

Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm. Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.” A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded. These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.

Conclusion

Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done. Some schools are excluding upwards of 50 percent of their student body each year. Students of color are still suspended at much higher rates than their white counter parts. By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made. Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out. By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.

Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services. She is a recognized expert on education law and school-to-confinement pathways. A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.